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Do we live in the 21st or 16th century?

November 03, 2004

It is unbelievable!

Some villagers decreed that a married couple are siblings only because they hail from the same gotra! And they ordered that a. the woman abort her foetus since she is not married to her husband, and b. give up some land that she claims to have inherited.

The latter demand clearly proves the incredibly mercenary nature of this panchayat that literally forced the couple, on fear of social boycott, mayhem or even death, to obey its diktat.

It needs to be asked what on earth the government is doing that it can allow this bunch of mercenaries to target an innocent couple.

This is landgrabbing at its worst, naked robbery under the guise of custom or tradition.

To hell with such tradition if its only purpose is to make the strong stronger against the weak, if their purpose is to allow some cruel people to gang up against people for some obscurantist reason to wreak havoc in people's lives.

India is a trillion times better off without such Jurassic age laws.

And what is this gotra business? What is a gotra? A claimed mythological descent from a rishi, who probably never existed except in the imagination of those who had nothing better to do but dream up such lineal claims only to pump up their self importance. Gotra claims are as ludicrous as Pakistani nuclear smuggler A Q Khan, claming that he was a lineal descendant of Mahmud of Ghazni!

Since such claims are impossible to prove or disprove, one really loses nothing by making them. Which is also why any educated person takes them with a platter of salt. Similarly, a gotra is nothing more than a fanciful claim: it can be amusing (like how we all find astrology amusing) but no one can or should take it seriously. And for some village elders to decide that because of a common gotra, a couple cannot marry and are siblings is nonsense at its worst.

But for the State not to interfere isn't just wrong, it sets off a dangerous precedent that can only harm India. If in the name of respecting tradition or customs the State (the central, state, or local municipal governments) does not want to interfere, it only means that India is not in the 21st century but in the 16th.

All our missiles, our IT, our numerous automobiles on the roads really mean nothing if we don't have laws that place us in the 21st century instead of the 16th.

It also means we are not very different from our neighbour, Pakistan, upon which some Indians love to heap opprobrium for the backwardness of its tribal and rural areas. After all, wasn't it in Pakistan some years ago that some panchayat raped a woman, all because her brother was seen with a girl of a 'higher' tribe (shows how deeply the caste system has permeated Islam in Pakistan). Indians were aghast, and rightly so. The good news is that the raped woman has taken case to court and the rapists are behind bars as the court hears the case. India needs to follow suit.

Then, just weeks ago, there was another panchayat farce (worse, it wasn't just shown live on television, it was actually enacted for the benefit of television) when Gudiya was ordered back to her first husband Mohammed Arif even though much earlier she had clearly said she'd rather stay with her second husband Taufiq (who she married after the Army declared Arif a deserter). In that terrible spectacle, Gudiya's voice, her choice, meant nothing.

This illiterate woman was expected to stand up and give her opinion when we know that highly educated woman crumble in the face of a public onslaught.

Is it any wonder then that Gudiya meekly accepted the decision of the kangaroo court that had gathered, when frankly it should really have been her choice and her choice only. Especially if you consider the fact that she was eight months pregnant with Taufiq's child (how heartless it is to make an eight-month pregnant woman go through that kind of television show is another matter altogether).

There are two kinds of panchayats in operation. The first is the caste/community panchayat, the second is the village panchayat. The truth is that both leave a lot to be desired. The idea behind allowing panchayats to function was to make it easier for people in the villages to get justice, to settle disputes within the community or village without incurring the expenses of hiring a lawyer or approaching the local court that is invariably located in a town some distance away.

But the concept of justice in a democracy implies some ground rules: that the accused are able to speak their minds and can defend their positions; that the justice handed down is in consonance with the principles enshrined in the Constitution of India; that the justice leans on the side of liberty, equality, fraternity of the individual rather than the wishes of a caste/community/village.

Books of jurisprudence state that the sources of law stem from the prevailing legal system or from customs and traditions that the people of a country or village or community follow. But they also state that where there is a conflict of interest between two sets of laws, the legal system as adopted by the country should normally prevail (unless it is explicity stated to the contrary).

The Indian Constitution guarantees the right of liberty and of expression. Not only that, in our judicial system every accused has the right to be heard/defended. But in the caste or village panchayats, such rules are rarely, if at all, followed. In Gudiya's case, she hardly got a word in, overwhelmed and overawed as she was. Her second husband Taufiq, a poor labourer, was not even allowed to speak.

Similarly, in the married couple's case, the husband or wife did not speak. They were so scared of being lynched that neither turned up. How then can justice have been served if the defendant fears for his very survival and keeps silent? Isn't this against India's judicial system and our Constitution? Why is it then being allowed or even tolerated?

Finally, it is time that panchayats are banned from dispensing justice. They need to serve as local administrative bodies, carrying out village work and local elections where the marginalised and oppressed are represented fairly, and serving as the local voice. They cannot, and should not, under any circumstance, have the right to sit in judgment on any case. Disputes of any kind must be settled by the courts and if need be, the government needs to set up more courts in the villages.

Setting up such courts also meets another requirement of a democratic society: the separation of the executive and the judiciary. As it is at the highest level, so must it be at the lowest level. By no stretch of imagination should the panchayats (village or community) be executive, legislature, and judiciary all rolled into one. Never.

The government must act now. If it does not, it will only strengthen the obscurantist elements who man such panchayats, and who, as time goes by, will become even more defiant. What if tomorrow some such panchayat hands down a death sentence and then insists the government must not interfere in the internal affairs of the community?

The government should heed Tallyrand's advice: not acting now against the panchayats won't merely be a crime, it will be a blunder!

Amberish K Diwanji

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Number of User Comments: 101

Sub: Do Ghosts Really Exists?

Though the television channel which incorporated the drama might say that they did all that to reach a just conclusion, this has invoked only feeling ...

Posted by Rohit Mewari

Sub: time to open our eyes and minds

If for people like shailendra and pm one case is not enuff to take steps to discard this stupid panchayat and they audacious rules then ...

Posted by Anu

Sub: matching of yonis

is it a good match if the guy is a "sarpa" yoni & the girl is a "shwan" / dog yoni? what would be the ...

Posted by pm

Sub: who we are?

Dear Mr. Amberish K Diwanji Agree with your comment that India must get rid of these so called judges who are still using centuries old ...

Posted by Amit

Sub: Too biased.

This is really a biased letter sorry I wont except it. Its like so much agressive. Be calm and you can also put these in ...

Posted by shivang


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